Rhodes v. City Of Fresno

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA — 10 — 11 PERCY LEE RHODES, ) Case No. 1:18-cv-00013-SKO ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION TO 13 v. ) REOPEN THE CASE 14 CITY OF FRESNO, et al., ) ) (Doc. 27) 15 Defendants. ) ) 16 ) — 17 — 18 Plaintiff Percy Lee Rhodes, proceeding pro se, filed this civil rights action pursuant to 42 19 U.S.C. § 1983 in Fresno County Superior Court on October 5, 2016. (Doc. 1 at 5–43.) Defendants 20 removed the case to this Court on December 29, 2017. (Doc. 1.) 21 On September 4, 2018, Plaintiff filed a “Stipulation of Dismissal Without Prejudice as to the 22 Defendants by Percy Lee Rhodes” (the “Stipulation”) seeking to dismiss this case without prejudice 23 pursuant to Federal Rule of Civil Procedure (“Rule”) 41(a)(1)(A)(ii). (Doc. 23.) Although the 24 Stipulation stated Defendants “agree and stipulate” to dismiss the case, the Stipulation was only signed 25 by Plaintiff and not signed by “all parties who have appeared” in the case as required by Rule 26 41(a)(1)(A)(ii). (See id.) 27 On September 5, 2018, the Court entered an order directing Defendants to file a response to the 28 Stipulation. (Doc. 24.) On September 7, 2018, Defendants filed a “Fully Executed Stipulated 1 Dismissal” agreeing to Plaintiff’s request for dismissal of this case without prejudice, which was 2 signed by all parties who have appeared in the case. (Doc. 25.) In light of the parties’ fully-executed 3 stipulation of dismissal, the Court closed the case on September 10, 2018. (Doc. 26.) 4 On August 6, 2019, Plaintiff filed a “Motion/Order to Reopen Case Under Civil P Rule 60 (B)” 5 but did not state the reason he is seeking to reopen the case. (Doc. 27.) Plaintiff does state, however, 6 that “[n]o prejudice will be suffered by defendants if case is reopened.” (Id. at 1.) 7 A stipulated dismissal under Rule 41 requires no action on the part of the court and divests the 8 court of jurisdiction upon the filing of the stipulation. Commercial Space Management Co., Inc. v. 9 Boeing Co., Inc., 193 F.3d 1074, 1076 (9th Cir. 1999) (“a Rule 41(a)(1) dismissal, once filed, 10 automatically terminates the action, and thus federal jurisdiction, without judicial involvement.”). 11 Therefore, when the stipulation of dismissal signed by all parties who had appeared was filed pursuant 12 to Rule 41(a)(1)(A)(ii) on September 7, 2018, the case was terminated and this Court was divested of 13 jurisdiction over Plaintiff’s case. As the stipulation of dismissal in this case provided Plaintiff’s 14 complaint was dismissed without prejudice, he is free to file a new complaint. However, Plaintiff’s 15 motion to reopen this case, (Doc. 27), is DENIED for lack of jurisdiction. 16 The Court DIRECTS the Clerk to send a copy of this Order to Plaintiff at his address listed on 17 the docket for this matter. — 18 — 19 IT IS SO ORDERED. 20 Sheila K. Oberto Dated: August 7, 2019 /s/ . 21 UNITED STATES MAGISTRATE JUDGE — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —